Appeal No. 2003-1349 Page 10
Application No. 09/768,969
Latzke is also affirmed, with the affirmance constituting a new ground of rejection under
37 CFR § 1.196(b).
The obviousness rejection based on Bulzomi in view of Terry and Oatman or Latzke
Claim 16 which depends from claim 12 has not been separately argued by
appellant as required in 37 CFR § 1.192(c)(7) and (8)(iv). Accordingly, we have
determined that this claim must be treated as falling with its parent claim. See In re
Nielson, 816 F.2d 1567, 1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987). Thus, it follows
that the decision of the examiner to reject claim 16 under 35 U.S.C. § 103 as being
unpatentable over Bulzomi in view of Oatman or Latzke as applied to claims 9 to 13
and 15 above, and further in view of Terry is also affirmed, with the affirmance
constituting a new ground of rejection under 37 CFR § 1.196(b).
The obviousness rejection based on Latzke in view of Bulzomi
We will not sustain the rejection of claims 9 to 13 and 15 under 35 U.S.C. § 103
as being unpatentable over Latzke in view Bulzomi.
In this rejection, the examiner (answer, pages 3-4) (1) ascertained that Latzke
teaches the claimed invention except for the exact formation of the element of apparel,
i.e., foot cover; and (2) concluded that it would have been obvious to make a foot
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